Who owns copyright when the agreement is unsigned?

A recent High Court decision shows the importance of finalising the documentation before beginning work on a project, in this particular case for software development. Failure to do so can lead to disputes over IP ownership.

Disputes about the ownership of copyright come before the courts with depressing regularity. The typical scenario is where a business engages a freelancer to provide copy and then fails to get a written assignment of the intellectual property rights generated by the freelancer. Another common pitfall is where an employee creates material. Subject to the terms of the contract of employment, which ideally should address the issue of employee-generated intellectual property, where the employee does so ‘in the course of their employment’ the intellectual property rights so generated will vest in the employer. However, the meaning of ‘in the course of their employment’ is a notoriously grey area — nor is it always obvious whether someone’s status is actually that of an employee or an independent consultant.

A third problem area concerns the situation where an agreement is negotiated but never signed. This was the issue in the recent High Court case of Destra Software Ltd v Comada (UK) LLP…

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